Robertson Bros. v. Garrison’s Estate
| Decision Date | 26 October 1929 |
| Docket Number | 4675 |
| Parties | ROBERTSON BROS. v. GARRISON’S ESTATE. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Christian County; Fred Stewart, Judge.
Claim by Robertson Bros. against the estate of John B. Garrison Carrie Garrison, executrix. The claim was disallowed by the probate court, and, on appeal to the circuit court, judgment was rendered for plaintiff, and defendant appeals. Affirmed.
Moore & Moore, of Ozark, for appellant.
G Purd Hays, of Ozark, and Neale & Newman, of Springfield, for respondent.
This suit is based upon the following account filed first in the probate court of Christian county:
This was followed with the usual affidavit to demand against an estate, and a signed waiver of service, and refusal to pay by the executrix of the estate.
A hearing was had in the probate court on April 12, 1928, and the claim was disallowed by the probate court, whereupon an appeal was taken to the circuit court of Christian county. At the May term, 1928, of the circuit court, a hearing was had before the court, a jury having been waived, and after evidence was heard, and argument made, the cause was taken under advisement by the court until the next regular term, and at the September term, 1928, a judgment was rendered for the plaintiff for $125, and appeal was in due time taken to this court.
Testimony in this case is very simple. Evidence was to the effect that the deceased had requested the plaintiff to fit up said rooms in Ozark, where he, who was suffering from some malady, could be treated by a firm designated as ""Hunter & Griggs," in Ozark, in order to save him the worry and expense of going from his home at Ozark to Springfield, and for fitting up said rooms he had agreed to pay $125. The testimony showed that the rooms were fitted up by the plaintiff, and that several witnesses said they had heard the deceased say he owed the amount to the plaintiff. No evidence was offered by the defendant to show that the deceased did not request the plaintiff to fit up the rooms, but an attempt was made to show that the agreement to pay, which was made by the deceased, was an agreement to answer for the debt, default, or miscarriage of "Hunter & Griggs," and could not be enforced, because it was not in writing.
No declarations of law were requested by either party. The defendant bases her grounds for reversal upon the following assignments of error:
"(1) The court erred in allowing witness Robertson to testify to anything, the other party to such contract being dead.
(2) The court erred in overruling defendant’s objection to the evidence of William E. Powell, and allowing such testimony to be introduced.
(3) The court erred in overruling defendant’s demurrer, to plaintiff’s evidence."
Witness Robertson was a member of the firm of Robertson Bros., and objection was made to his testifying because Garrison was then dead. His testimony was very short, and we have examined it carefully, and not a word is found therein pertaining to the contract between the deceased and his firm. As we understand it, section 5410 of Rev. St. 1919, does not disqualify Robertson as a witness as to all matters, but only disqualifies him from testifying as to the contract with the deceased. Our Supreme Court in the case of Elsea v. Smith, 273 Mo. 396, 408, 202 S.W. 1071, 1073, has expressed it this way:
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